Partly allowed

Basappa S/O Venkobappa v. N. Srinivas S/O Methayya

Karnataka HC1 Dec 2022MFA/20551/2011

Case brief

AI extract

What is this about?

The High Court enhanced compensation from Rs.1,11,840 to Rs.1,67,400 awarded to a motorcycle rider injured by a parked lorry. The insurer's appeal was dismissed as liability remained, while the claimant's appeal was allowed to increase the award due to higher notional income and lack of evidence on the driver's contributory negligence.

What did the court decide?

Compensation enhanced to Rs.1,67,400 with 6% interest; insurer to deposit amount within one month; 50% kept in fixed deposit for three years.

Basappa S/O Venkobappa Vs N. Srinivas S/O Methayya — Motor Accident Claims | Karnataka HC (2022)

¶1

¶2

MFA No. 21717 of 2011

¶3

C/W MFA No. 20551 of 2011

¶4

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1^ST DAY OF DECEMBER, 2022

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE R.NATARAJ

¶7

MISCELLANEOUS FIRST APPEAL NO. 21717 OF 2011 (MV)

¶8

C/W

¶9

MISCELLANEOUS FIRST APPEAL NO. 20551 OF 2011 (MV) IN MFA No.21717/2011:

¶10

BETWEEN:

¶11

SHRIRAM GEN. INS. CO. LTD. HEAD OFFICE - III E-8, RIICO, INDUSTRIAL AREA SITAPUR, JAIPUR, RAJASTAN – 302022. REP: BY ITS AUTHORIZED SIGNATORY.

¶12

(BY SRI. NAGARAJ C KOLLOORI, ADVOCATE)

¶13

AND:

¶14

BASAPPA S/O VENKOBAPPA AGE: 19 YEARS, OCC: STUDENT, R/O VADDARAHALLI VILLAGE, TQ: HOSPET, DIST: BELLARY NOW R/O MILLERPET, BELLARY.

¶15

VENKOBI S/O VENKAPPA AGE: MAJOR, OCC: DRIVER, R/O PAPINAYAKANAHALLI, TQ: HOSPET, DIST : BELLARY.

¶16

N SRINIVAS S/O METHAYYA AGE: MAJOR, OCC: BUSINESS, R/O H.NO. 69,

¶17

…APPELLANT

¶18

¶19

MFA No. 21717 of 2011

¶20

C/W MFA No. 20551 of 2011

¶21

PAPINAYAKANAHALLI,

¶22

TQ: HOSPET, DIST : BELLARY.

¶23

M GANGADHAR S/O B VENKOBAPPA AGE: MAJOR, OCC: OWNER OF THE MOTORCYCLE, R/O VADDARAHATTI, TQ: HOSPET, DIST: BELLARY.

¶24

THE DIVISIONAL MANAGER M/S ORIENTAL INSURANCE CO. LTD. SLU TOWERS, PARVATHINAGAR, BELLARY.

¶25

…RESPONDENTS (BY SRI. Y LAKSHMIKANT REDDY, ADVOCATE FOR R1; SMT. SHARMILA M. PATIL, ADVOCATE FOR R5; R2 TO R4 ARE SERVED)

¶26

THIS MFA IS FILED U/S.173(1) OF THE M.V.ACT, AGAINST THE JUDGEMENT AND AWARD DATED 30.11.2010, PASSED IN M.V.C. NO.575/2009, ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL -IX, BELLARY, AWARDING THE COMPENSATION OF RS.1,11,840/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

¶27

IN MFA No.20551/2011:

¶28

BETWEEN:

¶29

BASAPPA S/O VENKOBAPPA AGE: 20 YEARS, OCC: STUDENT, R/O VADDARAHALLI VILLAGE, TQ: HOSPET, DIST: BELLARY NOW R/O ROOPENAGUDI ROAD, BELLARY.

¶30

…APPELLANT (BY SRI. Y. LAKSHMIKANT REDDY, ADVOCATE)

¶31

¶32

MFA No. 21717 of 2011

¶33

C/W MFA No. 20551 of 2011

¶34

AND:

¶35

N SRINIVAS S/O METHAYYA AGE: MAJOR, OWNER OF LORRY BEARING RE.NO.KA-35/8746 R/O H.NO. 69, PAPINAYAKANAHALLI VILLAGE, TQ: HOSPET, DIST : BELLARY

¶36

THE DIVISONAL MANAGER M/S. SRIRAM GENERAL INSURANCE COMPANY LIMITED HEAD OFFICE – III E.B. RIICO INDUSTRIAL AREA SITAPUR, JAIPUR RAJASTHAN INSURED AT BRANCH OFFICE HOSPET.

¶37

M GANGADHAR S/O B VENKOBAPPA AGE: MAJOR, OCC: OWNER OF THE MOTORCYCLE, BEARING REG.NO.KA-35/R-8754 R/O VADDARAHATTI VILALGE TQ: HOSPET, DIST: BELLARY.

¶38

THE DIVISIONAL MANAGER M/S ORIENTAL INSURANCE CO. LTD. SLU TOWERS, PARVATHINAGAR, BELLARY. …RESPONDENTS (BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE FOR R2; SMT. SHARMILA M. PATIL, ADVOCATE FOR R4; R3-SERVED; R1 – NOTICE DISPENSED WITH) THIS MFA IS FILED U/S.173(1) OF THE M.V.ACT, AGAINST THE JUDGEMENT AND AWARD DATED 30.11.2010, PASSED IN M.V.C. NO.575/2009, ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL -IX, BELLARY, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶39

¶40

MFA No. 21717 of 2011

¶41

C/W MFA No. 20551 of 2011

¶42

THESE APPEALS COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶43

JUDGMENT

¶44

MFA No.21717/2011 is filed by the insurer challenging the finding regarding negligence, liability and the quantum of compensation determined by the Motor Accident Claims Tribunal – IX, Bellary, in MVC No.575/2009.

¶45

The claimant has filed MFA No.20551/2011 seeking enhancement of compensation determined in MVC No.575/2009.

¶46

The claimant contended in his claim petition that on 08.03.2009, he was riding a motorcycle bearing registration No.KA-35/R-8754 along with a pillion rider and were returning from Kariganur village and proceeding towards Vaddarahalli. At about 7.30 p.m., when he was proceeding near the over bridge, he shunted a parked lorry bearing registration No.KA-35/8746 (henceforth referred to as ‘offending vehicle’) and suffered injuries in the accident. The claimant claimed that the lorry was parked without switching on the hazard lights and without taking proper measures to alert the other users of the road.

¶47

¶48

MFA No. 21717 of 2011 C/W MFA No. 20551 of 2011

¶49

The claimant was initially examined at Government Hospital, Hospet and thereafter at Government Hospital, Bellary and since the claimant had suffered head injury, he was referred to NIMHANS, Bengaluru for higher treatment.

¶50

Based on these contentions, the claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation from the owner and insurer of the offending vehicle.

¶51

The insurer of the offending vehicle contested the claim petition claiming that it was the claimant who was negligent and who was driving the motorcycle at breakneck speed. It contended that it was he who was responsible for the accident and therefore, it was not liable to pay any compensation.

¶52

The owner of the offending vehicle and the driver filed a common statement of objections contending that since the vehicle had broken down, they had parked it on the National Highway – 63 near the over bridge on the extreme left side of the road and that the claimant carelessly banged

¶53

¶54

MFA No. 21717 of 2011

¶55

C/W MFA No. 20551 of 2011

¶56

against the parked lorry. They claimed that many other vehicles had passed through the road, while it was the claimant who was negligent and who banged against the parked vehicle.

¶57

Based on these rival contentions, the claim petition was set down for trial. The claimant was examined as PW.1 and he marked Exs.P1 to P18. The insurer of the motorcycle examined one of its officials as RW.1 and marked Ex.R1. The driver of the offending vehicle was examined as RW.2, who marked Exs.R1 to R5. The insurer of the offending vehicle examined one witness as RW.3.

¶58

Based on the oral and documentary evidence, the Tribunal held that the offending vehicle was parked on the National Highway – 63 without switching on the hazard lights and without giving proper indication to the other users of the road that the vehicle was parked on the road. It therefore, held that the accident was due to the negligence on the part of the driver of the offending vehicle. In so far as quantum of compensation is concerned, it held that the wound certificate disclosed extra dural hemorrhage in left frontal region of the head and contusion in left shoulder and bleeding from left ear.

¶59

¶60

MFA No. 21717 of 2011

¶61

C/W MFA No. 20551 of 2011

¶62

It held that there was a fracture on the left EDH parietal bone. In the absence of any evidence of a medical professional, to assess the disability of the claimant, the Tribunal awarded the following compensation:-

¶63

Sl.No.	Heads	Amount
1.	Towards Pain and sufferings	Rs. 35,000/-
2.	Towards Medical expenses	Rs. 5,000/-
3.	Towards attendant charges	Rs. 3,000/-
4.	Towards nursing and nourishment charges	Rs. 3,000/-
5.	Loss of earning during the treatmentperiod	Rs. 6,000/-
6.	Towards loss of future earnings	Rs. 51,840/-
7.	Towards loss of amenities	Rs. 3,000/-
8.	Towards conveyance charges	Rs. 5,000/-
	Total	Rs. 1,11,840/-

¶64

As regards liability of the insurer of the offending vehicle, it held that the vehicle in question was covered by a policy of insurance for the period from 28.11.2009 to 27.11.2010. It held that the driver of the offending lorry did not possess a valid and effective driving licence as on the date of the accident and that it was subsequently renewed. It held that though the driving licence had expired on 01.01.2009, it was renewed from 30.07.2009 and he was authorized to drive a Heavy Transport Goods vehicle. Under the circumstances, it

¶65

¶66

MFA No. 21717 of 2011 C/W MFA No. 20551 of 2011

¶67

held that the insurer of the offending vehicle is liable to indemnify the owner of the offending vehicle to the extent of 50% and hence, it directed the insurer of the offending vehicle to pay 50% of the compensation determined by it.

¶68

Being aggrieved by the same, the present appeals

¶69

are filed.

¶70

The learned counsel for the insurer contended that the offending vehicle was parked by the side of the road and the complaint lodged by the claimant in MVC No.576/2009 clearly disclosed that the claimant was riding a motorcycle at a very high speed and since he could not control it, he banged against the parked lorry. He therefore, contended that there was no negligence on the part of the lorry and the negligence was completely attributable to the claimant. He further submitted that the compensation awarded was exorbitant as the injuries were simple in nature and the claimant did not lead any evidence of medical professional to establish the disability. He further contended that the driver of the offending vehicle possessed a licence which expired on 01.01.2009 and therefore, as on the date of the accident, the driver did not

¶71

¶72

MFA No. 21717 of 2011

¶73

C/W MFA No. 20551 of 2011

¶74

possess licence to drive the vehicle but it was renewed on 30.07.2009. He therefore, contended that in view of the judgment of the Division Bench of this Court in MFA No.100226/2016 c/w MFA No.100730/2016 disposed off on 22.04.2021, the insurer is exempted from the liability to pay the compensation determined by the Tribunal.

¶75

The learned counsel for the claimant, on the other hand, contended that the Tribunal had failed to award adequate compensation to the claimant, in view of the fact that the claimant was 19 years old boy who had suffered fracture on the left EDH parietal bone which resulted in disfigurement. In so far as the finding of the Tribunal regarding negligence, he contended that the vehicle was parked in the middle of the road without any proper indication and therefore, it is the driver of the offending vehicle who was negligent. In so far as liability to pay compensation is concerned, he contended that the driving licence of the driver was renewed on 30.07.2009. Even otherwise, he contended that the driver did possess licence, which expired on 01.01.2009 and he had the expertise to drive

¶76

10 -

¶77

MFA No. 21717 of 2011

¶78

C/W MFA No. 20551 of 2011

¶79

the vehicle and hence cannot result in exempting the insurer

¶80

from indemnifying the owner of the offending vehicle.

¶81

I have considered the submissions made by the learned counsel for the insurer and the learned counsel for the claimant.

¶82

The accident in question is not in dispute. It is also

¶83

not in dispute that due to the accident, the claimant had suffered fracture of the left EDH parietal bone. The accident in question occurred at about 7.30 p.m. during March 2009 on National Highway - 63. It is not in dispute that the offending vehicle had broken down due to “sudden air lock”. If the driver of the offending vehicle had switched on the hazard lights and/or taken adequate measures to warn the other users of the road about the parked vehicle, it is incomprehendible as to how a person would bang himself against the parked vehicle. The fact that the accident had occurred at 7.30 p.m. during the March, 2009 makes it clear that there was no indication given by the driver of the offending vehicle to the other road users. Therefore, the contention of the insurer that the claimant himself was negligent, deserves to be rejected. In addition, the

¶84

11 -

¶85

MFA No. 21717 of 2011 C/W MFA No. 20551 of 2011

¶86

driver of the offending vehicle was not examined before the Tribunal and therefore, this Court is bound to decide the case based on probabilities and the human experience. Hence, the finding of the Tribunal that the claimant was negligent to the extent of 50% and that he contributed to the extent deserves to be interfered with and it is held that the accident occurred entirely due to the negligence of the driver of the offending vehicle.

¶87

In so far quantum of compensation is concerned, the Tribunal has considered the disability suffered by the claimant at 8% to the whole body and has taken his notional income at a sum of Rs.3,000/- per month, while in similar circumstances, this Court has considered the notional income at a sum of Rs.5,000/- per month.

¶88

In that view of the matter, the compensation to which the claimant is entitled to deserves to be marginally enhanced as follows:-

¶89

12 -

¶90

MFA No. 21717 of 2011

¶91

C/W MFA No. 20551 of 2011

¶92

Sl.No.	Heads	Amount
1.	Towards Pain and sufferings	Rs. 35,000/-
2.	Towards Medical expenses, extra nourishment and travel expenses	Rs. 20,000/-
3.	Towards attendant charges	Rs. 6,000/-
4.	Towards loss of earning capacity due to disability (5,000 x 12 x 18 x 8%)	Rs. 86,400/-
5.	Loss of earning during the treatment period	Rs. 10,000/-
6.	Towards loss of amenities	Rs. 10,000/-
	Total	Rs.1,67,400/-

¶93

Hence, the compensation awarded by the Tribunal is enhanced from Rs.1,11,840/- to a sum of Rs.1,67,400/- with interest at the rate of 6% per annum from the date of the claim petition till its deposit.

¶94

In so far as liability to pay the compensation is concerned, the offending vehicle was stationary and therefore, the question whether the driver of the offending vehicle possessed a licence or not is purely academic. The offending vehicle was covered by a policy of insurance, which was in force as on the date of the accident and therefore, the driver not possessing licence as on the date of the accident would not exempt the insurer from indemnifying the owner of the offending vehicle. In that view of the matter, the appeal filed

¶95

13 -

¶96

MFA No. 21717 of 2011

¶97

C/W MFA No. 20551 of 2011

¶98

by the insurer deserves to be dismissed, while the appeal filed

¶99

by the claimant deserves to be allowed.

¶100

Hence, the following

¶101

ORDER

¶102

i) MFA No.21717/2011 filed by the insurer of the offending vehicle is dismissed.

¶103

ii) MFA No.20551/2011 filed by the claimant is allowed in part.

¶104

iii) The compensation awarded by the Tribunal is enhanced from enhanced from Rs.1,11,840/- to a sum of Rs.1,67,400/-, and the enhanced compensation is payable by the insurer of the offending vehicle along with interest at the rate of 6% per annum from the date of the claim petition till its deposit.

¶105

iv) The insurer of the offending vehicle shall deposit the compensation along with interest before the Tribunal within a period of one month from the date of receipt of a certified copy of this judgment.

¶106

v) Upon deposit, 50% of the enhanced compensation along with interest shall be kept in fixed deposit in

¶107

14 -

¶108

MFA No. 21717 of 2011

¶109

C/W MFA No. 20551 of 2011

¶110

the name of the claimant in any nationalized bank for a period of three years.

¶111

vi) The amount in deposit in MFA No.21717/2011 is ordered to be transferred to the Tribunal for necessary orders.

¶112

(Sd/-) JUDGE

¶113

PMR

¶114

List No.: 1 Sl No.: 9

Basappa S/O Venkobappa v. N. Srinivas S/O Methayya

Case brief

What is this about?

What did the court decide?

Basappa S/O Venkobappa v. N. Srinivas S/O Methayya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Union of India Vs Devendrappa S/O Chanabasappa Belkendi

Savita W/O Praveen Shivalli Vs Praveen S/O Basavanneppa Shivalli

The State of Karnataka Vs Chidananda S/O Ishwaryya Bagalkot

The Manager Vs Yunusali S/O Peerasab Kotabal

Ashok Narayan Polyekar, Vs Channamallikarjun Swamy

Sameer Baburao Polyekar, Vs Channamallikarjun Swamy